ATTORNEY GENERAL v. T.M. BROAD PERMANENT MAGISTRATE

1985 No. 676

IN THE SUPREME COURT OF HONG KONG

MISCELLANEOUS PROCEEDINGS

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JUDGMENT

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1. By section 2 of the Extradition Act 1870:

"Where an arrangement has been made with any foreign state with respect to the surrender to such state of any fugitive criminals, Her Majesty may, by Order in Council, direct that this Act shall apply in the case of such foreign state."

Section 17 of the same Act provides that:

"This Act, when applied by Order in Council, shall, unless it is otherwise provided by such order, extend to every British possession in the same manner as if throughout this Act the British possession were substituted for the United Kingdom or England, as the case may require, but with the following modifications."

Then follow certain procedural differences which are to apply to British possessions. Section 18 deals with the case where a British possession has made provision locally for the surrender of fugitive criminals and allows for the suspension by Order in Council of the Imperial Act so long as the local law or ordinance continues in force, or for the making of a direction by Order in Council that the local law or ordinance shall have effect with or without modifications or alterations as if it were part of the Extradition Act 1870.

2. It is to be remarked that the words "when applied by Order in Council" in section 17 hark back to section 2, that is, the application to a foreign state. Every British possession is within the purview of the 1870 Act unless the Order in Council which applies it to a particular foreign state provides otherwise, or the operation of the 1870 Act is suspended by Order in Council as provided for under section 18. And of course the operation of the Act in any particular British possession may be affected by the incorporation of the local law or ordinance also as provided for under section 18. But if the Order in Council applying the Act to any particular foreign state is silent on the question and if the position is untouched by any subsequent Order in Council the Act will apply to a British possession save for the procedural differences in like manner as to the United Kingdom.

3. So the 1870 Act gives the necessary, municipal authority and creates the necessary, municipal machinery to give effect to an arrangement, if made, between the United Kingdom and a foreign state for the surrender of fugitive criminals from the United Kingdom or any British possession to the foreign state. Its operation is potential unless and until activated by Order in Council applying it to a particular foreign state with which such an arrangement has been made. Then it applies not only to the United Kingdom but to every British possession which is not expressly excluded from its terms. Therefore it is not right to speak of the Act being applied to any particular British possession by Order in Council save in so far as the Order in Council applying it to a foreign state applies the provisions of the Statute itself.

4. The 1870 Act sets out the procedures, with modifications in the case of British possessions, which should follow upon a request by a foreign state for the arrest and surrender of a fugitive criminal. "Fugitive criminal" is defined as meaning any person accused or convicted of an extradition crime committed within the jurisdiction of the foreign state. An extradition crime is defined as meaning a crime which, if committed in England or within English jurisdiction, would be one of the crimes described in the First Schedule to the Act. The First Schedule to the 1870 Act listed a number of such crimes. The 1870 Act has, however, been followed by others in pari materia which have added to the list of extradition crimes and which may now be cited collectively as the Extradition Acts 1870-1935. There have been further additions to the list of crimes in the Schedule by later amendments and extensions. One of these amendments is contained in section 33 of the Misuse of Drugs Act 1971 which reads:

"The Extradition Act 1870 shall have effect as if conspiring to commit any offence against any eractment for the time being in force relating to dangerous drugs were included in the list of crimes in Schedule 1 to that Act."

5. So far as Hong Kong is concerned there has been one ordinance passed dealing with extradition, the Extradition (Hong Kong) Ordinance, Chapter 236. It purports to alter the procedures laid down in section 17 of the principal Act. The Ordinance was passed in 1875 and by Order in Council of 1877 Her Majesty directed that it should have effect in Hong Kong without modification or alteration as if it were part of the Extradition Act 1870. Since 1877 the Ordinance has been amended a number of times and it is the 1964 edition which is currently in force. So far as research discloses the subsequent amendments have not been sancitioned by any Order in Council.

6. On 8th June 1972 a Treaty with Protocol was concluded between the United Kingdom and the United States of America for the reciprocal extradition of offenders. It superseded an earlier Extradition Treaty and was ratified on 21st October 1976. Order in Council 2144 of 1976 applies the Extradition Acts 1870-1935 as amended or extended by any subsequent enactment in the case of the United States of America in accordance with the Treaty. The operation of the Order in Council was expressly limited to the United Kingdom, Northern Ireland, Channel Islands, Isle of Man and those territories specified in Schedule 2 to the Order, of which Hong Kong is one.

7. Therefore the Extradition Acts 1870-1935, as amended or extended and as modified by the Extradition (Hong Kong) Ordinance, at least as to the 1875 version, apply to Hong Kong not, I think, by virtue of the Order in Council but by virtue of section 17 of the principal Act as applied to the United States of America from the provisions of which Hong Kong has not been excepted.

8. The Treaty provides for the surrender of wanted persons between the contracting parties. By Article III extradition is to be granted for any offence described in the Schedule to the Treaty and for conspiracy to commit such an offence if the conspiracy is one for which extradition may be granted under the laws of both parties and is punishable under the laws of both parties by imprisonment or other form of detention for more than one year or by the death penalty. Item 12 in the Schedule is "an offence against the law relating to narcotic drugs, cannabis sativa I, hallucinogenic drugs, cocaine and its derivatives, and other dangerous drugs."

9. On some date prior to 4th December 1984 the United States Government made a request to the Governor of Hong Kong, pursuant to the Treaty, for the arrest and surrender of one G.P. Ghale, a resident of Nepal, who stands accused of crime in the U.S.A. Ghale had been charged in the United States with an offence contrary to Title 21, United States Code, Section 846 of "conspiracy to distribute a controlled substance (heroin)". He had been released on bail but had absconded and come to Hong Kong. The Governor required the Principal Magistrate to act upon the request in conformity with the provisions of the Extradition Acts 1870-1935. The requisition was supported by ample evidence of a prima facie case against Ghale though it would be inappropriate to review the evidence in the course of this judgment. Ghale was brought before a Permanent Magistrate sitting at Causeway Bay Magistracy on 4th December 1984, presumably pursuant to a warrant issued by the magistrate. The hearing of the application for committal lasted two days, at the end of which Leading Counsel for Ghale submitted that there was no case for the making of an order. He put forward three propositions. They were these:-

The learned Magistrate accepted all three submissions and ordered the discharge of Ghale who promptly departed these shores.

10. In the light of that decision the Attorney General now applies for Judicial Review with leave of Mayo, J. given on 15th March 1985. He asks for relief by way of declaration that:-

"On the true construction of the Extradition Act 1870 as extended to Hong Kong by Order in Council, a Magistrate has jurisdiction to hear and determine requests made for the return of fugitive criminals for the offence of conspiracy to traffic in dangerous drugs."

The relief sought relates only to the first of the learned Magistrate's rulings, it being perceived as involving a matter of law of public importance, as indeed, I hold that it does. Trafficking in drugs is a widespread criminal activity and those engaged in it frequently cross imternational borders, not only to escape apprehension but also to perpetrate the offence. In its nature the offence often involves a criminal conspiracy and most jurisdictions in the world recognize an offence of conspiracy to traffic in dangerous drugs or a close equivalent. Of course from country to country what is to be classified as a dangerous drug may vary as may what is to be termed "trafficking", but the essentials of the offence, as I have said, are to be found in most criminal calendars of the civilized world. Because the matter is one of general importance and because I take the view on a reading of section 105 of the Magistrates Ordinance and a consideration of the authorities, notably Card v. Salmon ⁽¹⁾, that appeal by way of case stated will not lie, it seems to me that were I to accept the main submission in this case that the learned Magistrate was wrong in holding that conspiracy to traffic in dangerous drugs is not an extraditable offence as between Hong Kong and the United States of America it would be appropriate to give a declaration to that effect. The other two grounds of the learned Magistrate's decision have not been challenged and in any event do not involve questions of principle being in the one case concerned with a matter of evidence and in the other with a matter of form.

11. It is unexceptionable that the offence in relation to which an application is made for committed must be an extradition crime in Hong Kong regardless of the terms of the Treaty. In the instant case Article III (2) of the Treaty requires the offence to be extraditable under the laws of both Parties. Leading Counsel at the hearing and apparently the Magistrate treated that as a reference to Hong Kong and the United States of America. The Attorney General has submitted that "parties" must mean parties to the Treaty - that is United Kingdom and United States of America. I do not find the question an easy one having regard to the wording of the Treaty as a whole but it does not fall to be considered today as on any view the particular offence is an extradition crime in the United Kingdom and if I hold that it is also an extradition crime in Hong Kong the Treaty is satisfied whatever its true construction; and if I do not the application must fail regardless of the terms of the Treaty.

12. I have had the advantage of seeing the written submissions of Leading Counsel which were handed to the Magistrate. What he appears to have put is this: a local Ordinance is necessary to apply the Extradition Acts in Hong Kong: the latest and indeed only relevant Ordinance is Cap. 236: that Ordinance confers powers in relation to the Extradition Acts 1870 and 1873 "as so extended": the words "as so extended" refer back to the extensions chronicled in the preamble to the Ordinance, namely the Extradition Act 1873, the Slave Trade Act 1873, the Extradition Act 1906, the Extradition Act 1932 and the Counterfeit Currency (Convention) Act 1935: there is no local Ordinance applying any later extension or amendment: therefore conspiracy to commit offences in relation to dangerous drugs has never been applied in Hong Kong and therefore that offence is not an extradition crime under the Laws of Hong Kong. The submission appears to have been accepted by the learned Magistrate in its totality. This is what shows from his written judgment:-

13. It seems to me that the fallacy at the heart of both the submission and the learned Magistrate's decision is that local legislation is necessary to extend the Extradition Acts to Hong Kong. As has been observed the Acts are applicable to Hong Kong as to every other British possession unless the contrary is provided for by Order in Council. The Extradition Act 1970 is to have effect as if conspiracy to traffic in dangerous drugs were included in the list of crimes in the First Schedule to the Act. It is therefore potentially an extradition crime in Hong Kong. It becomes a crime for which extradition will lie at the behest of a foreign state when the Extradition Acts are applied to such foreign state by Order in Council. That is precisely what the United States of America (Extradition Order 1976) does in relation to the United States of America, and far from making any contrary provision the Order in Council expressly provides that the Extradition Acts 1870-1935 as amended or extended by any subsequent enactment shall apply in the case of the United States of America in accordance with the Treaty, and further includes Hong Kong within the limits of its operation. Nothing more is required. The absence of any express application of the Extradition Acts by local Ordinance is immaterial.

14. More than that, if local legislation unsupported by Order in Council purports to derogate from the effect of the Extradition Acts it is to that extent void by Section 2 of the Colonial Laws Validity Act 1865 as being repugnant to the Imperial enactment. Not so of course under Section 18 of the principal Act if the Extradition Act has been superseded pro tempore or it has been directed by Order in Council that the local Ordinance is to apply as if it were part of the Act. Recognising this last possibility the Attorney General has addressed himself to a submission, not made in terms. I think, to the Magistrate, that Cap. 236 in some way limits the application of the Extradition Acts in Hong Kong to their stage of development as at 1935. That could only be the case, of course, if Cap. 236 has been confirmed by Order in Council. Well, as I have noted, in its original form, as Order 11 of 1875, it was confirmed by Order in Council of 1877 which directed that it should have effect in Hong Kong as if it were part of the principal Act. Now Order 11 was concerned only with procedures in Hong Kong and cannot conceivably be read as limiting or modifying the operation of the Extradition Acts in Hong Kong save with regard to those procedural matters. However by the later amendment, in the words adverted to, the Ordinance is seemingly capable of being read as if the procedural modifications relate only to those Acts which had been incorporated by 1935. I do not think on ordinary canons of construction that could be so having regard to the fact that the Ordinance is to be read as one with the Extradition Acts. But even if capable of such a construction it could not possibly serve to do more than confine the application of the procedural changes to those Extradition crimes listed as at 1935. More fundamentally, however, the words "as so extended" have come in by amendment which lacks confirmation by Order in Council. Given the possible extreme meaning and effect deployed in argument the words "as so extended" must repugn the United Kingdom Acts.

15. So I am satisfied that the learned Magistrate erred in accepting the submission. His error appears on the face of the record. For the reasons given it is right that I should make a declaration but not quite, I think, in the terms sought.

16. I make a declaration that:-

"Under the Extradition Acts 1870-1935 as amended and extended and applied to the United States of America by Order in Council Number 2144 of 1976 a Magistrate in Hong Kong has jurisdiction to hear and determine requests made for the return of Fugitive Criminals for the offence of Conspiracy to Traffic in Dangerous Drugs."

The Court wishes to express its gratitude to Mr. Edward Chan of Counsel for his help in this important matter and for agreeing to act as amicus curiae.

17. Order in terms of the declaration and no order as to costs.

(1) [1953] 1 Q.B. 393